Welcome to New York Times v. Sullivan

A Republican Congressman sued NBC over a Rachel Maddow's comment that he had accepted material from a Russian agent without notifying the authorities. That comment was apparently false, but Maddow got the "news" from a Politico article. The congressman, Devan Nunes, sued NBC for defamation. The lawsuit fails because Nunes cannot prove actual malice.

The case is Nunes v. NBC Universal, a summary order issued on October 15. Defamation cases in the United States are difficult to win when the plaintiff is a public figure, like a Congressman. This is because the Supreme Court in New York Times v. Sullivan (1964) said public figures have to prove actual malice. This heightened standard, said the Court, ensures public debate will not be quashed by fear of a lawsuit, and that people may get their facts wrong on public issues so long as they do not knowingly repeat false information or rely on untrustworthy news sources.

Plaintiff wanted the Second Circuit (Calabresi, Lee and Nardini) to disregard the actual malice test. There is a movement afoot to accomplish just that, and some conservatives on the Supreme Court had suggested it is time to do so. But we are not there yet, and actual malice is embedded in our constitutional system as much as the Dormant Commerce Clause and Sovereign Immunity. Besides, New York law recognizes the actual malice test. Either way, plaintiff has to prove actual malice.

Summary judgment was proper on this claim because plaintiff cannot show that Rachel Maddow knowingly repeated a falsehood. In relying on the Politico article, she acted reasonably under the constitutional order, as Politico is not the Weekly World News. The Second Circuit writes, 

"In New York Times, the Supreme Court held that a defendant’s reliance on a responsible source negates a finding of “the recklessness that is required for a finding of actual malice.” “Similarly, this Court has held that where reporters’ false statements in an article were based on reliable sources, the defendant could hardly be accused of gross negligence, much less actual malice.” Nunes provided no evidence at the summary judgment stage that provided any basis for a reasonable inference that Maddow or Gnazzo should have regarded the Politico article as unreliable.